Health Reform and the Supreme Court: Day Three

The press reads the tea leaves

As the Supreme Court ended oral arguments on the Affordable Care Act, addressing whether the law can stand alone without the individual mandate, the press coverage was dominated by speculation. Justices speculated about the questions put before them, and the media speculated on the likely outcome if the mandate doesn’t survive. The Washington Postsummed it up this way:

Before this week’s arguments, many lawyers who practice before the court said privately that they thought the court’s precedents indicated that the Obama administration would emerge the victor. And the court’s four liberal justices showed themselves to be comfortable with the assertion of federal power in the law. But there was deep skepticism among the conservatives.

Indeed, there was much skepticism in the Court about the law’s central feature, which would require everyone to carry health insurance. Wednesday the government argued that if the mandate is struck down, the rest of law, which includes some limited cost containment measures and requires insurers to cover young adults under their parents’ policies, should go as well. The 26 states that have challenged the law also agree that the entire law must fall. On this issue, as on the mandate, the court appeared ideologically divided, and media stories reflected that division.

Reuters reported conservative Justice Antonin Scalia’s observation that if the mandate were struck down, the entire law must go: “My approach would be if you take the heart out of the statute, the statute is gone.” The New York Times’s account offered more on Scalia’s reasoning, noting that the justice placed the law in a political context:

You’re not going to get 60 votes in the Senate to repeal the rest. It’s not a matter of enacting a new act. You’ve got to get 60 votes to repeal it. So the rest of the act is going to be the law.

Liberal justices took a different view, Reuters said. Justice Sonia Sotomayor wanted to know if the Court should let Congress decide what to do next. “What’s wrong with leaving it in the hands of people who should be fixing this, not us?” she asked. Justice Ruth Bader Ginsberg noted that many parts of the law had not been challenged in court, and she wondered “why make Congress redo those?” The Washington Post reported that Ginsberg had asked whether her colleagues were on “a wrecking operation” or a “salvage job” as they decided the future of the law without the mandate.

A few news outlets branched out, playing a kind of “what if” speculation game about what would happen if the court rips the mandate out of the law. Clearly that’s an important question, and one that interests audiences, who in the last few days may have heard more about the specifics of the Affordable Care Act than they did when it was moving through Congress. The lede of a piece by the AP’s Ricardo Alonso-Zaldivar asserted “President Barack Obama’s health care law would not automatically collapse” if the Supreme Court strikes down the mandate. Zaldivar interviewed health policy experts who pointed to alternative ways to make Americans buy health insurance.

The AP interviewed Gail Wilensky, who ran the Medicare program in the administration of President George H.W. Bush. One option, Wilensky explained, is to penalize people who refrain from purchasing health insurance until they get sick. Medicare has a similar system, imposing financial penalties on seniors who don’t sign up during a special sign-up window when they first become eligible. The point is to prevent insurers from insuring the proverbial burning house, when they will certainly lose money paying for the damage. That idea was floated during health reform but not given much serious consideration. WaPo explored this problem, too, reporting that “many of the law’s supporters insist that without the mandate, these rules would impose an unsustainable burden on insurers, ultimately causing the market to implode.”

It was WaPo that seemed to offer the coda to the arguments of the past three days:

Much can happen between now and the expected ruling this summer, and a far more moderate tone may emerge. Broad statements come more easily in the court’s intense oral arguments than in majority opinions. Between now and the decision, supporters and foes of the law will be able to point to evidence that their side will prevail.

That is exactly what will happen, and the broad statements uttered by both supporters and opponents will likely dominate the media narrative until we know for sure.

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